JAMUNABAI VS SURENDRAKUMAR about:blank

This product is Licensed to : Rajendra Daundkar; Advocate

1995 0 AIR(MP) 274; 1996 0 MPLJ 113; 1995 0 Supreme(MP) 381;

High Court Of Madhya Pradesh

R. S. GARG
JAMUNABAI - Appellant
Versus
SURENDRAKUMAR - Respondents
Misc. Appeal 142 Of 1988
Decided On : 03/22/1995

Acts Referred:
EVIDENCE ACT : S.68, S.45
HINDU SUCCESSION ACT : S.30, S.281, S.283, S.279
SUCCESSION ACT : S.59, S.2(h), S.63
TRANSFER OF PROPERTY ACT : S.3, S.283

Cases Referred:
Referred to : Vashudeo v. Smt. Suman, 1993 2 MPJR 264 Referred
Rarnasingha Rajput v. Murtibai, AIR 1923 Nag 41
A v. B, 1990 3 SCC 364

Advocates Appeared : B.K.Joshi, MAHESHVARI

R. S. GARG, J.

( 1 ) THIS miscellaneous appeal under Section 299 of the Indian Succession Act has been filed by
some objectors against the order dated 4-7-1986 passed in Probate Case No. 4 of 1983 by the learned
Additional Judge, Mhow to the Court of District Judge, Indore, rejecting the objections filed by the
objectors and granting the probate certificate on the application of respondent No. 1 filed under S. 276 of
the Indian Succession Act.

( 2 ) THE respondent No. 1 filed an application under Section 276 of the Act alleging therein that
deceased Dujaia,who was the real elder brother of respondent No. 1, executed a will on 20/04/1976 in
favour of. the respondent No. 1 whereunder the properties were bequeathed in favour of the respondent
No. 1. It was further averred that Dujaia having expired on 5-6-1976, the respondent No. 1 has succeeded
to the property. According to the respondent No. 1 the properties described in the Will would be
succeeded by him which include moveables and immoveables. The application was filed in the year 1977
and a public notice was issued in daily newspaper 'swadesh'. As no objections were received, by order
dated 12-8-1977 granting the application of respondent No. 1 a probate certificate was issued in his
favour. But later on certain objection were filed on which M. J. C. No. 94 of 1977 was registered and in
view of the final order passed in M. J. C. No. 94 of 1977 the probate proceedings were reopened. The
objectors filed their objections against the grant of the certificate alleging therein that the alleged Will is
sham, bogus and is a result of forgery; it has not been signed or executed by deceased Dujaix, but in fact
the respondent No. 1, to grab the property of deceased Dujaia and mar upon the rights of the other
successors has concocted the said Will. They also submitted that the alleged Will in that does not fall
within the definition of the last testamentary disposition of the deceased but in fact is declaration of the
rights so also is a partition deed. As the same is not on proper stamps it is inadmissible in evidence.

( 3 ) CONTENDING further it was submitted that the deceased was residing with objector Chhotelal
who not only maintained him, got his eyes operated and spent a sum of Rs. 2000/- on the last rituals of

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deceased Dujain. It was also submitted that after marrying a Christian girl the respondent No. l has ceased
to be a Hindu and is professing Christianity; According to the objectors the deceased in his last days
became a drunkard, suffered with bad vision and his mental condition also deteriorated. Various other
legal objections were raised and it was submitted that the will was not properly attested and the
application under Section 276 was not in accordance with Sections 279 and 281 of the Act.

( 4 ) THE trial court recorded the statements of the witnesses, received the documents in evidence,
and after hearing the parties by its impugned judgment dated 4-7-1988, rejecting the objections held that
the document in fact is a Will and is not a document under which rights were declared. It also found that
the execution and attestation of the will was properly and legally proved, the Will is not invalid though it
relates to the Joint family property and the deceased was not in a good condition of disposition when he
executed the will. Accordingly rejecting the objections it ordered grant of probate certificate with costs.

( 5 ) SHRI B. K. Joshi appearing for the appellants contended that the order passed by the trial Court
is patently illegal and deserves to be set aside. He submitted that (a) the document is not a Will, (b)
execution and attestation of the will is not legally proved, (c) the Will is shrouded with clouds of doubtful
circumstances, (d) a Will in relation to the joint family property could not be executed, (e) there was a
very short time gap between the execution of the alleged Will and the death which shows that the
deceased was not in a fit mental condition, (f) the respondent No. 1 after marrying a Christian girl has
ceased to be a Hindu and is professing Christianity, therefore, he is not entitled to any relief, and lastly (g)
the probate application was not in accordance with the provisions of Section 279/281 of the Indian
Succession Act. He, therefore, submitted that the order passed by the court below be set aside and the
application filed by the respondent for grant of probate certificate be rejected.

( 6 ) REPLYING the above arguments it was submitted by Shri N. K. Maheshwari counsel for the
respondent No. 1 that the document if read as a whole, then in fact it would show the intention of the
deceased. Stray sentences cannot be read out of context. The document is to be read as a whole and only
from a complete and dispassionate reading it is to be found as to whether the document is a Will or not.
He submitted that the document is a Will and, therefore, there was nothing wrong with the order of the
trial Court. It was further submitted that the execution and attestation of the Will have been properly
proved and there are no doubtful circumstances creating a cloud over the genuineness of the Will. Relying
upon S. 30 of the Hindu Succession Act it was submitted that a Hindu governed by Mitakshara Law can
execute a Will even in relation to the joint family property in which he has a share. According to him the
Will was executed on 20/04/1976 and the deceased died on 5/06/1976. Therefore, it cannot be assumed
that there was a short time between the execution and the death. It was further contended that even if the
respondent No. 1 professes Christianity as a religion then too it would not come in his way because the
law does not lay down any prohibition that a will by Hindu cannot be executed in favour of a Christian
though according to him there is nothing on the record to come to a positive finding that the respondent
No. 1 has ceased to be a Hindu. Lastly it was submitted that the non-verification of the application in
accordance with the provisions of Indian Succession Act would merely be an irregularity and would not
come in the way of the Court in dispensing justice and deciding-the rights of the parties in issue. ( 7 )
"will" has been defined in Section 2 (h) of the Indian Succession Act, 1925. According to the definition,
"will" means the legal declaration of the intention of a testator with respect to his property which he
desires to be carried into effect after his death. To ascertain as to whether the document in dispute i. e. Ex.
D/2 dated 20/04/1976 is a Will or not the Court is called upon to see whether there is a legal declaration of
the intention of a testator with respect to his property which he desires to be carried out into effect after
his death. A perusal of Ex. P2 would show that the deceased in the very first paragraph has said that as he
is a widower and issueless and has grown old there is no certainty of his life, he wanted to make the
necessary arrangements about his personal and ancestral properties during his life time. The last lines of
the paragraph 2 clearly recited that for those reasons he was executing the Will. The title of the document
is 'wasiyatnama'. In paragraph 4 the executant has again stated that after his death the property be divided
in four parts and the share which would come to the deceased be given to the respondent No. 1. From this
recital a legal declaration of the intention can certainly be spelled out that the, deceased wanted that his
property be dealt with in a particular manner after his death. On page 4 he has again stated that the
document executed on 20/04/1976 was the first and last will executed by the deceased. The last paragraph

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of the document again reads that the Will was written under his directions and the same was read over to
him. After understanding the Will the deceased was giving the rights under the Will to the respondent No.
1.

( 8 ) THE Will further recites that it was executed and attested in presence of the witnesses. There are
certainly certain recitals which say that the deceased was executing Ex. P-2 as per the directions of the
mother of the deceased. From these recitals, the counsel for the appellants wanted to make out the case
that as the mother of the deceased was of the opinion that the property should be partitioned in a particular
manner, therefore, the document would only be a document which is declaring the rights of the parties or
in the alternative it is a document of partition. I am unable to accept this argument. A complete reading of
the document Ex. P-2 would show that the deceased executed the Will and the reason for the execution
was the directions issued by the mother. If the mother had given certain directions to a son who later on
translates the intentions of the mother into the action which relate to the personal property of the deceased
and the family property without affecting the rights of the other parties which they have in the ancestral
property, then certainly the document would not come out of the mischief of S. 2 (xh ). Rejecting the
objection I hold that the document Ex. P-2 in fact is a Will as it relates to the testamentary disposition of
the deceased.

( 9 ) THE respondent No. 1 has examined his ownself as P. W. 1 and has further examined P. W. 2
Gordhan and P. W. 3 Badrinarayan Tiwari to prove the execution and attestation of the Will. The
respondent No. 1 has stated that the document was executed on 20th April, 76 and it was drafted by Shri
B. N. Tiwari, Advocate, Mhow. Shri B. A. Tiwari (P. W. 3) on this aspect of the matter has supported the
respondent No. 1. According to P. W. 1 Surendrakumar, after the Will was drafted by Shri Tiwari,
Advocate, it was brought home on which the deceased. Dujain had put his signatures in presence of
Gordhan and Vinayak Rao. According to him the other brothers (the objectors) were also present. The
Will was read over and in presence of everybody Dujaix had executed the Will. He has further proved the
signatures of the deceased on each and every page of the Will. He has also stated that Vinaya Rao and
Gordhan had also put their signatures as witnesses on the Will. He has further testified that Shri Tiwari,
Advocate has put his signatures as D to D on the Will. According to him the deceased was having a good
health and was in a sound mental condition. He has the disposing capacity. No pressure was exerted on
him and the Will was the last Will of the deceased. He has denied that the Will was result of forgery.

( 10 ) ON these material aspects he is supported by P. W. 2 Gordhan. According to Gordhan, the Will

was executed and attested at the residential house of Dujaix. The same was read over to Dujai who after
hearing the same had put his signatures on the document. The signatures A to A on each page were put in
his presence. He has further stated that after the Will was executed by Dujai, attesting witness Vinayak
Rao had put his signatures on the said document as B to B and he himself put the signatures as C to C. He
has further stated that Shri B. N. Tiwari had put the signatures as D to D. According to this witness the
physical and mental condition of the deceased was good.

( 11 ) SHRI B. N. Tiwari (P. W. 3) corroborating these two witnesses has clearly stated that Ex. P-2
was signed by the deceased and Shri Tiwari has proved the signatures on the said document. According to
his statement Vinayak Rao and Gordhan had put the signatures as attesting witnesses and he himself had
put the signatures on the document at D to D. According to him the document was read over to the
deceased and the witnesses and the deceased accepted it. In the crossexamination of P. W. 1
Surendrakumar it was suggested that Ex. P-2 was a forged document. The suggestion obviously was
denied. It was further suggested to the witness that as he has married a Christian girl and has ceased to be
a Hindu deceased Dujain was annoyed, therefore, he would not have executed a Will in favour of
respondent No. 1. The suggestion was again denied. He has again denied the fact that at the time of
execution of the Will Hemraj, and Chhotelal were not present. This witness has further stated in the cross-
examination that the deceased was not a drunkard and was not residing with Chhotelal. According to him
the deceased was having a good health and a sum of Rs. 500 - Rs. 700 required in the last rituals of the
deceased was spent by the members of the family. Nothing material could be brought out in the
crossexamination of this witness.

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( 12 ) IN cross-examination of P. W. 2 Gordhanlal it was suggested to him that the respondent No. I

has converted to Christianity to which the witness denied as having no knowledge. In the cross-
examination in paragraph 9 the witness has clearly stated that he was called at the residence of Dujain and
after he reached there the Advocate came along with the document. According to this witness the brothers
and sisters of the deceased were present on the spot. The counsel stated that their signatures be taken, but
he did not know as to whether the signatures were taken or not. According to him the document was
brought by the Advocate. From the cross-examination of this witness one positive fact emerges that the
deceased had given certain instructions to the Advocate and after this witness reached the residence of the
deceased, the Advocate came there and also brought the alleged Will. Under these circumstances even
from the statement of this witness it is clear that the respondent No. 1 Surendrakumar was not possessed
of the document but in fact it was brought by the Advocate who had drafted the same under the
instructions of the deceased.

( 13 ) IT was suggested to P. W. 3 Badrinarayan Tiwari, Advocate that the deceased was wearing
either spects or green cloth on his eyes. The suggestion was negatived by the Advocate. It was also
suggested to him that the respondent No. 1 was professing Christianity and in very plain words negativing
the suggestion P. W. 3 Shri B. N. Tiwari stated that respondent No. l continues to be a Hindu. No
suggestion has been made in the cross-examination that the document was got typed under the instructions
of someone else. It was also not suggested to the witness that the respondent No. 1 had exercised some
pressure on the free Will of the deceased. From the statement of these three witnesses it is thus clear that
the Will Ex. P-2 was drafted by P. W. 3 Shri B. N. Tiwari, Advocate under the instructions of deceased
Dujain, it was signed in presence of the witnesses and P. W. 3 Shri B. N. Tiwari by the deceased Dujaix
and the two witnesses also signed in presence of each other and in presence of deceased Dujain. So also it
is clear that all the above three signed in presence of P. W. 3 Shri B. N. Tiwari. As such execution and
attestation in my opinion is proved as required under the law. ( 14 ) THE appellants-objectors challenging
the signatures on the document have examined. D. W. 4 Achut Narayan Ganorkar, a Handwriting Expert.
According to the opinion of the witness the signatures on Ex. P.-2 were the outcome of some forgery. The
signatures on the document Ex. P-2 were not written by the writer of the standard signatures. The detailed
cross-examination of this witness was to the effect that the witness is not properly educated nor has the
experience for examining the Hindi letters and words. This witness has clearly admitted that he has not
taken any education in relation to the Hindi script, but he has developed the signs in his experience. In
paragraph 13 this witness has clearly stated that on a good surface the writing would be better in
comparison to the bad surface which would produce a bad writing. He has admitted that the writing from
different pen would be different and there would also be a difference in the shading. According to this
witness the location of the letters and words would be changed. The witness was asked about the change
in the style of writing of a man after the lapse of three years to which the witness has said that he was
unable to answer because he was not in a position to say as to what would be the change in the style of
writing in a gap of three years. His opinion was an opinion of an Expert. He has not stated that the
signatures on Ex. P-2 suffer with the shivering or has a pause for creation of the words to bring them in
similarity with the real signatures.

( 15 ) THE learned trial Court, after considering the evidence of the Handwriting Expert has come to
the conclusion that the evidence of the Expert is merely a suggestive piece of evidence and is not
absolutely positive. In my opinion the observations made by the learned trial Court are absolutely
justified. After all it is for a Court of law to compare the signatures and come to a positive finding. The
Expert's evidence may or may not be relied upon, but in a case where the positive ocular testimony proves
a particular fact which stands unshattered in the cross-examination then such Expert's evidence would not
take place of the positive proof and, therefore, the Court will have to come to its own conclusion as to
whether reliance is to be placed on the positive ocular testimony or the Expert's evidence which is based
on the comparison of the disputed signatures with the standard signatures. It is undisputed that the
standard signatures which were provided to the witness were beyond a period of three years. According to
the objectors the deceased suffered bad vision and had to undergo an operation. According to them he was
growing old and was weak. If a witness who has suffered in his health and had to undergo an operation
within that period of three years then obviously some change here or there would not make the ocular
testimony unreliable. In the instant case I am of the opinion that the testimony of P. W. 1

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Surendrakumar, P. W. 2 Gordhan and P. W. 3 Shri B. N. Tiwari, Advocate, outweighs and overweighs

the opinion of the Expert. The trial Court was justified in holding that the Will was signed and executed
by the deceased Dujain. I also, while confirming the findings recorded by the trial Court hold that Ex. P-2
Will was signed and executed by deceased Dujain and was signed by the witnesses in presence of the
deceased. ( 16 ) SHRI B. K. Joshi relying upon a judgment of this Court in matter of Vashudeo v. Smt.
Suman, (1993 (2) MPJR 264) submitted that the Will has not been properly attested. The attestation has to
be in accordance with S. 63 of the Indian Succession Act and also in accordance with S. 68 of the
Evidence Act. In the instant case the Will has been attested by two independent witnesses. According to S.
3 of the Transfer of Property Act the word 'attested' in relation to an instrument, means and shall be
deemed always to have meant attested by two or more witnesses each of whom has seen the executant
sign or affix his mark to the instrument, or has seen some other person sign the instrument in presence and
by the direction of the executant, or has received from the executant a personal acknowledgment of his
signature or mark, or ofthe signature of such other person and each of whom has signed the ,instrument in
the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have
been present at the same time, and no particular form of attestation shall be necessary. According to S. 63
of the Act (a) the testator shall sign or shall affix his mark to the Will, or it shall be signed by some other
person in his presence and by his direction, (b) the signature or mark of the testator, or the signature of the
person signing for him; shall be so placed that it shall appear that it was intended thereby to give effect to
the writing as a Will, (c) The Will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and
by the direction of the testator, or has received from the testator a personal acknowledgment of his
signature or mark, or of the signature of such other person and each of the witnesses shall sign the Will in
the presence of the testator, but it shall not be necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary.

( 17 ) IT would be clear from Ex. P-2 that the document is signed by deceased Dujain, it has been
witnessed by two witnesses and thereafter Shri B. N. Tiwari has also put his signature on the document.
From the evidence of P. W. 1 Surendrakumar, P. W. 2 Gordhan and P. W. 3 Shri B. N. Tiwari it is clear
that after the deceased has put the signatures and executed the Will in presence of the witnesses, the other
two witnesses had put their signatures as attesting witnesses in presence of the deceased. It is further to be
seen that Shri B. N. Tiwari P. W. 3 has put his signatures after seeing that the executant and the other two
witnesses have put their signatures on the Will in presence of each other. Accordingly it is clear that the
document was not only properly executed and attested by the executant and witnesses, but in fact the
evidence on record shows that it was really executed and attested. The challenge thrown by the counsel
for the appellant has to be accordingly rejected.

( 18 ) IT was thereafter contended that the Will is shrouded under the doubt of circumstances.
According to Shri B. R. Joshi there are serious doubts regarding the validity and the, circumstances in
which the Will was executed. According to him the clouds which cover the Will do not make it to be the
last free will of the deceased and there is no silver lining in these dark clouds. Shri Maheshwari contended
that there is nothing on the record to show or suggest that the Will was not the last and free Will of the
deceased. From the evidence on record it does not appear that any pressure was exerted or fraud was
played on the deceased by the beneficiary P. W. 1 Surendrakumar. No doubt it is true that the burden is
on the propounder to prove due and valid execution of the Will. The propounder is required to show by
satisfactory evidence that the Will was signed by the testator and at the relevant point of time the testator
was in a sound and disposing state of mind, that he understood the nature and effect of the disposition
when he put his signature to the document out of his own free Will. When such clinching evidence is
adduced in support of the Will and the witnesses are uninterested and satisfactory the Court would be
justified in making the finding in favour of the propounder. If such evidence is brought on the record
which is clinching and proved the execution and attestation to be genuine and valid then certainly the
burden would shift on the objectors. The propounder of the Will is required to remove the suspicion from
the mind of the Court by positive, cogent and satisfactory evidence. In any case these principles are to be
applied in view of the facts of the case.

( 19 ) IN the instant case as I have already held that the Will was prepared under the instructions of

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the deceased, it was drafted by a lawyer, it was brought by the lawyer at the residence of the deceased in
presence of the witnesses and after the signatures of the deceased the attesting witnesses had put their
signatures on the document which were again certified by the Advocate then it cannot be said that the Will
was shrouded with suspicious circumstances or is clouded. In the present case it is to be seen that the Will
was executed on 20/04/1976 and the deceased died on 5-6-1976. The gap was almost of forty-five days.
Nothing has been brought on the record to show or suggest that on the date of the execution of the Will
the deceased was not in a fit mental condition of disposition. On the other hand it is clear from the record
that the deceased after understanding the contents of the document has put his signatures. I hold that the
Will is genuine and is not shrouded with suspicious circumstances. I further hold that the deceased
understood the nature and effect of the disposition when he had put his signatures to the document out of
his own free Will. This contention of the learned counsel for the appellant deserves to be rejected.

( 20 ) IT was next contended that the deceased under the law could not execute the Will in relation to
the joint family property. Relying upon S. 30 of the Hindu Succession Act, 1956 it was contended by Shri
N. K. Maheshwari that the objection deserves to be rejected. Section 30 of the Hindu Succession Act
reads as under:"30. Testamentary succession.- Any Hindu may dispose of by Will or other testamentary
disposition any property, which is capable of being so disposed of by him, in accordance with the
provisions of the Indian Succession Act, 1925, (39 of 1925), or any other law for the time being in force
and applicable to Hindus. Explanation.- The interest of a male Hindu in a Mitakshara coparcenary
property or the interest of a member of a Tarwad, Tavazhi, Illom, Kutumba or Kavaru shall,
notwithstanding anything contained in this Act, or in any other law for the time being in force, be deemed
to be property capable of being hisposed of by him or by her within the meaning of this Section. "this
matter clearly lays down that any Hindu may dispose of by Will or other testamentary disposition any
property which is capable of being so disposed of by him in accordance with the provisions of the Indian
Succession Act, 1925. The Explanation clarifies that the interest of a male Hindu in a Mitakshara
coparcenary property shall be deemed to be property capable of being disposed of by him or by her within
the meaning of this section the Explanation clearly states that the interest of a male Hindu in Mitakshara
coparcenary property shall notwithstanding anything contained in this Act (Hindu Succession Act) or any
other law for the time being in force be deemed to be property capable of being disposed of by him or by
her within the meaning of S. 30. Now if according to S. 30 and its Explanation the interest in a Mitakshara
coparcenary property is to be deemed to be property capable of being disposed of by him, then this
objection that the Will in relation to the joint family property could not be executed has to be rejected.

( 21 ) THE disability of a coparcener in disposing of his undivided interest in the property by Will or
other testamentary document under the old Hindu Law is removed by S. 30. According to S. 4 any custom
inconsistent with any provision of this enactment is abrogated. In the expression "any other law for the
time being in force", the 'law' will include any statutory law or textual law or customary law. It would,
therefore, follow that if there was any prohibition under the old Hindu Law the same stands removed after
coming into force of S. 30 of the Hindu Succession Act.

( 22 ) RELYING upon 1992 (1) MPWN 161 (sic) (Guru (Smt.) v. Shri Atma Singh) it was submitted
that if the testator dies within a very short period of the execution of the Will then it has to be assumed
that the deceased was not in a fit mental condition. In the said case the deceased died within 8 days of the
execution of the Will and the circumstances brought on the record showed that the deceased was not in a
fit physical and mental condition. In the instant case there is nothing on the record to show that the
deceased was suffering with such ailment which could affect his mental condition. On the other hand from
the statement of P. W. 2 Gordhan and P. W. 3 S4ri B. N. Tiwari, Advocate, it is clear that the deceased was
in a fit mental condition and was understanding the nature and effect of the disposition when he had put
his signature to the document. In the said case various circumstances were found by the appellate Court
and relying upon those circumstances certain orders were passed. Those findings of facts recorded by the
first appellate Court were reversed by the High Court in second appeal. Reversing those findings the
Supreme Court observed that the findings were based on evidence and the said findings could not be set
aside. In the instant case in my opinion the findings arrived at by the trial Court are perfectly justified and
legal. ( 23 ) IT was thereafter contended that after, marrying a Christian girl respondent No. 1
Surendrakumar, the propounder of the Will, is professing Christianity, therefore, he is not entitled to the

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probate as claimed by him. I am unable to agree to this argument. The law is very clear in relation to the
Will. Will is a last testamentary disposition of a person who holds the property or has right in the property.
Either the Hindu Succession Act or the Indian Succession Act does not put any embargo on the power and
authority of the executant that a Will cannot be executed in favour of a person who is professing another
religion. If this argument of the learned counsel for the appellants is accepted it would create chaotic
conditions. Then, a person who is the owner of the property would not be in a position to transfer it after
his death under a Will.

( 24 ) ACCORDING to S. 2 (h) of the Indian Succession Act the 'will' means the legal declaration of
the intention of a testator. It does not restrict the right or authority of the deceased. Even otherwise the
evidence on record does not show that P. W. 1 Surendrakumar after marrying a Christian girl has started
professing Christianity. D. W. 1 Chhotelal has merely said that Surendrakumar has converted to
Christianity. He does not give any details. In paragraph 13 he has clearly stated that as Surendrakumar
has married a Christian girl, therefore, in his opinion he professes Christianity. This evidence is not
sufficient to prove that Surendrakumar has converted to Christianity. D. W. Z Babulal while stating in
examination-in-chief that Surendrakumar is a Christian, in paragraph 8 of the cross-examination has
said that he heard that Surendrakumar is professing Christianity. This evidence is again insufficient to
prove the allegations made by the witness. It is, therefore, to be held that firstly the witnesses have failed
to prove that after marrying a Christian girl P. W. 1 Surendrakumar, the propounder of the Will is
professing Christianity or has converted himself or has ceased to be a Hindu. So also even if for some
reason it is to be held that he has converted into a Christian then too the question is of the right of a Hindu
for execution of the Will. Here the Will is executed by Dujain who admittedly was a Hindu and there is no
law which forbids a Hindu from executing a Will in favour of man belonging to some other religion. This
argument raised by the learned counsel for the appellant has no merit and has to be rejected. 24a. Relying
on S. 279 it was contended that it was imperative on the propounder of the Will who was seeking a
probate to make a positive statement in the petition that to the best of his belief no application has been
made for the probate of the same Will or for letters of administration of the same estate. According to the
counsel for the appellant if these statements are not made then in view of the mandatory provisions of S.
279 of the petition for grant of probate filed under S. 276 is liable to be rejected. Section 279 of the Indian
Succession Act reads as under"s. 279- Addition to statement in petition, etc. ; for probate or letters of
administration in certain cases. (1) Every person applying to any of the Courts mentioned in the proviso to
Section 273 for probate of a Will or letters of administration of an estate intended to have effect
throughout India, shall state in his petition, in addition to the matters respectively required by Section 276
and S. 278, that to the best of his belief no application has been made to any other Court for a probate of
the same Will or for letters of administration of the same estate, intended to have such effect at least
aforesaid, or, where any such application has been made, the Court to which it was made, the person or
persons by whom it was made and the proceedings (if any) had thereon. (2) The Court to which any such
application is made under the proviso to Section 273 may, if it thinks fit, reject the same. "the intention of
this section is that the applicant must not only disclose all the previous proceedings in respect of any
testamentary document of the testator for which the applicant has himself initiated the proceedings but the
Court is to be well informed beforehand thatthe particular document on which reliance has been placed
was never a subject-matter of a judicial scrutiny of some Court. So also it is to be brought to the notice of
the Court that the matter in relation to the same estate or property was never adjudicated upon under some
testamentary disposition. " 24b. True it is that in the instant case this particular statement is not made in
the petition. But to my mind it would not be a cause for dismissing the petition. The intention of the
Legislature behind S. 279 is only to apprise the Court that a particular document on the strength of which
a probate is sought was never the subject-matter of a judicial scrutiny in a given case. Even after the
document is rejected by one Court the propounder may file application before some other Court. To avoid
such an eventuality S. 279 is brought in the Statute Book. In my opinion it is not mandatory but it merely
directs for the convenience of the Court that a party should make such statement in the petition that the
said document was never the subject-matter of some earlier proceedings in relation to the grant of probate
nor the property which is sought to be claimed under the said document was subject-matter of some other
proceedings, in relation to succession. It would be seen further that in the instant case though there were
no statements made by the propounder of the Will that no application has been made to, any other Court
for probate of the same Will of the same estate, but the evidence on record does show that there was no

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other application. It is not the case of the appellants that the said Will was subject matter of some probate
proceedings or were used for obtaining the letters of administration before some competent Court in
relation to the same estate. In absence of such allegations or proof on the part of the appellants objectors it
cannot be held that absence of these pleadings would come in the way of the propounder of the Will and
non-observance of S. 279 would be fatal to the very maintainability of the petition. In my opinion as
observed above the intention of the Legislature is to avoid the double trial in relation to the same issue.
24c. It was then submitted that the application for probate was not verified by at least one of the witnesses
to the Will in the manner or to the effect as given in S. 281. Relying upon 1993 (2) MPJR 264 (Vashudeo
v. Smt. Suman) it was contended that nonobservance of S. 281 is fatal to the maintainability of the
petition and -. according to this judgment such petition is liable to be dismissed. I have given my anxious
consideration to this judgment. In paragraph 7 of this judgment this Court after quoting S. 281 had held
that the application (in that case) for grant of probate was, however, submitted in clear violation of this
provision. According to the judgment the verification by witness was permitted by the Probate Court by
order dated 21-6-80 and pursuant to this verification was done by Udaya (P. W. 2) on 21-8-80. Later, this
was supplemented by Dinkar (P. W. 1) on 24-11-80. According to the Court the order sheet, however,
throws no light about latter part. After discussing this much in paragraph 7, the learned Judge did not
proceed further on this aspect of the matter. This judgment is no authority on the point that non-
observance of S. 281 is a lethal blow to the petition itself at its threshold.

( 25 ) ON the other hand relying upon AIR 1923 Nag 41 (Rarnasingha Rajput v. Murtibai) it was
contended by the learned counsel for the respondent No. 1 that the provisions regarding verification by
attesting witness is only directory. Considering this aspect the Court has observed as under:"it is next
contended that the petition was not verified by an attesting witness as required by Section 67 of the
Probate and Administration Act. No authority is cited to show that the proceedings of the lower Court are
invalidated by this omission. The section requires such verification if the witness is procurable. This
shows that the provision is directory and not mandatory and the omission can be cured. If the matter had
been pressed, the omission could have been supplied by taking she witness's attestation on the Will. I do
not consider the omission a fatal one. "

( 26 ) RELIANCE was further placed by the counsel for the respondent on Nandkishore Rai v. Mst.
Phagi Kuer, AIR 1955 All 329 (sic) and it was contended that non-compliance with the provisions of S.
281 is not fatal. According to this judgment verification of a petition required under S. 281 is similar to
verification required of pleadings including a plaint under Order 6, Rule 15, C. P. C. and has no greater
effect or value. Omission to verify, or defective verification of a pleading is a mere irregularity within S.
99, C. P. C. and is never fatal. The provision of S. 281 of the Succession Act is less drastic than that of O.
6, R. 15, C. P. C. and an omission to verify or defective verification of a petition for probate cannot have a
more serious effect than that of a plaint. A pleading must be verified by a party or by some other person
acquainted with the facts of the case a petition for a probate is, however, required to be verified by an
attesting witness. A petitioner for probate has no legal authority over an attesting wittness and cannot
compel him to verify the petition. A petitioner may be bound to get the petition verified, but an attestang
witness is not bound to verify it at his instance and such a petitioner would be helpless if the latter, for any
reason refuses to verify it even though it contains nothing but the facts. Relying upon the judgment
reported in AIR 1923 Nag 41 (supra) the Allahabad High Court finally held that the provisions in S. 281 is
merely directory and not mandatory i. e. non-compliance with it was not intended to lead to the rejection
of the petition. I am in respectful agreement on these two judgments.

( 27 ) IN my opinion and as the matter was argued in detail it is necessary to add a few words. S. 281,
prima facie, shows that where the application is for probate the petition shall also be verified by at least
one of the witnesses to the Will and the manner in which this verification is to be made is given in S. 281.
The intention of the Legislature behind enacting S. 281 is very clear. It is expected that forged Wills which
have been attested by such persons who are rot to be found may not be brought before the Court. The
intention behind S. 281 is to be seen from its own language. According to S. 281 a petition should also be
verified by at least one of the witnesses. The effect of non-observance of the conditions laid under S. 281
are not given under the Indian Succession Act. The use of the word 'shall under these circumstances
would not mean mandatory resulting in the dismissal of the petition for grant of probate but in fact it only

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means that the petition should be verified by one witness if he is available. In the instant case the
application filed under S. 276 has the signature of Gordhanlal (P. W. 2) on it. P. W. 2 Gordhanlal has put
his signatures on the main petition as a witness though the words in which the verification is to be made
are not to be found in the main petition. As observed above the requirement is of the signatures of an
attesting witness. The form provided under S. 281 is directory is a guideline and does nowhere say that if
the verification is not in accordance with S. 281 then the petition is liable to be rejected. In my opinion,
the provision about verification of the petition is recommendatory and not mandatory and an omission to
verify is not fatal to the probate proceedings. The contention of the learned counsel that absence of a
verification in accordance with S. 281 would make the petition liable to be rejected is untenable and the
same is rejected.

( 28 ) AFTER close of the case the learned counsel for the appellant placing reliance upon the
judgment of (1990) 3 SCC 36 (Rampiari v. Bhagwant) submitted that suspicious circumstances must be
ruled out by clear and cogent evidence. It was submitted that the testator must be in a testamentary
capacity or have a disposing state of mind. The Supreme Court in the said judgment has said-"although
freedom to bequeath one's property amongst Hindus is absolute both in extent and person, including rank
stranger, yet to have testamentary capacity or a disposing state of mind what is required of propounder to
establish is that the testator at time of disposition knew and understood the, property he was disposing and
persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying
benefit to those who too were entitled to bounty of testator as they had similar claims in him. Absence of
it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to
the mind of testator to enable the Court to judge if the disposition was a voluntary act. Even though it
cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no
reason for exclusion is disclosed, then the standard of scrutiny is not the same and if Courts below failed
to be alive to, it as is clear from their orders then their orders cannot be said to be beyond review. Taking
active interest by propounder in execution of Will raises another strong suspicion. Unless the propouqder
cleared the suspicion with clear and satisfactory evidence mere execution of Will, thus, by producing
scribe or attesting witness or proving genuineness of testator's thumb impressions by themselves was not
sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and
the Court's conscience is satisfied not only on execution but about its authenticity. "28a. One of the
questions raised by the counsel for the appellant that as the propounder of the Will has ceased to be a
Hindu he is not entitled to rely upon the Will and the deceased could not bequeath the property to him, is
clearly answered by this judgment when the Supreme Court says that the freedom to bequeath ones own
property amongst Hindus is absolute both in extent and person, including rank stranger.

( 29 ) ACCORDING to Supreme Court the testamentary capacity or a disposing state of mind must
also be proved to be valid. In the instant case as I have already found above the testator was having a
testamentary capacity and was having disposing state of mind. He knew what he was doing and therefore,
on this ground the Will cannot be rejected. A perusal of the Will shows that genuine and germane causes
are given in the Will for denying benefit to the others who were otherwise entitled to the bounty of testator
as they had some claim. According to the Supreme Court absence of the reasons may not invalidate a Will
but it shrouds the disposition with suspicion as it does not give any inkling to the mind of the testator, to
enable the court to judge if the disposition was a voluntary act. In the instant case the reasons for denying
the benefits are well described in the Will itself. The objectors have nowhere stated either in their reply or
in the statements that the deceased prior to the execution of the Will or the death had assured them that he
would bequeath the property to the objectors or would give some benefits to them. In absence of this
evidence coupled with the fact that the reasons for denying the benefits are given in the Will it cannot be
held that the Will is shrouded with suspicious circumstances. A propounder is required to clear the
suspicion by clear and satisfactory evidence. In the ingtantcase the propounder of the Will has not only
proved merely the execution of the will or its attestation but has proved that the will was genuine, it was
executed by the deceased and there were no circumstances creating a cloud on the genuineness of the
Will. In my opinion this ground deserves to be rejected.

( 30 ) LASTLY it was contended that on page 2 mention is made about a plot of land adjoining the
ancestral house, but the deceased has even executed the Will in relation to it and has given absolute

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authority over this property to the respondent No. 1. In my opinion, the recitals made in relation to this
open plot of land do not make the respondent No. 1 absolute owner of this plot of land. The recitals are
clear. They state that a dispute is pending in the Court of law and after the judgment is delivered in favour
of the family then Surendra Kumar has to maintain the property. This does not mean that the deceased has
given absolute right to the respondent No. 1. Obviously this disposition is to be read in conjunction with
the disposition in relation to the other joint family properties. There are four brothers, each of whom has
equal right in the property. If ultimately it is found that the property belongs to the joint family then each
of the family member would have an equal share. The recital to my mind does not make the respondent
No. 1 an absolute owner of the property. The later part just fills the description of the plot and its
maintenance, states that the other moveable properties such as wearing apparels, utensils which belong to
the family be partitioned in four shares and share of the deceased be also given to respondent No. 1 Behari
(Surendrakumar ). The first part and the last part of this paragraph would show that in fact the deceased
was of the opinion that his share only should pass under the will to the respondent. Under these
circumstances the contention of the learned counsel that the complete property has been given to the
respondent No. 1 cannot be accepted. In my opinion the argument deserves to be rejected.

( 31 ) THE appeal for the above reasons deserves to be and is accordingly dismissed. But, however,
there shall be no roder as to cost. Appeeal dismissed.

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